Ghan vs State Of HP CRLA 311/21 06/01/23 [ SABINA JJ ]

[ HIMACHAL PRADESH HIGH COURT ]

• Section 376 IPC POCSO ACT Section 4B Section 437A CRPC Conviction Sustainability Penetrative sexual assault Appreciation of evidence Held, prosecution required to establish its case against accused beyond shadow of reasonable doubt Victim not supported prosecution case during trial nor scientific evidence corroborates prosecution case PW-3 deposed as per information given to her by complainant and not by victim herself PW-7 also deposed with regard to facts narrated by complainant and not by victim herself Conviction of appellant only on basis of testimony of complainant as possibility that she might have falsely involved accused in this case on account of domestic violence cannot be ruled out Thus, accused acquitted by giving him benefit of doubt Accused directed to furnish personal bond in sum of Rs.25,000/and surety in like amount. [Paras 21 to 26 and 28]

Relevant Paras:

21. Thus, in the present case, victim has not supported the prosecution case during trial nor the scientific evidence corroborates the prosecution case.

22. PW-3 Guddi Devi, deposed that she was working as Mid-Day-Meal Helper at Government Primary School, Nohra Khandol. In the year 2016, victim was a student of 2nd Class and during school hours she used to observe that the victim remained quite and scared. On inquiry made from the mother of the victim, it transpired that the father of the victim was doing wrong acts with her. In her cross-examination, she deposed that the appellant had not molested anyone in her presence. She admitted that the appellant was a drunkard and troubled his family and parents for the last many years. Thus, so far as the statement of PW-3 Guddi Devi is concerned, she has deposed as per information given to her by the mother of the victim and not by the victim herself.

23. PW-7 Rajat Sharma, deposed that the appellant was his father and the victim was younger daughter of the appellant. He came to know from his mother that something wrong had happened with his sister and his mother made reference of involvement of her father. His mother had told him that the victim complained of pain in her private part. In his cross-examination, he deposed that no one from the village had ever complained with regard to the act and conduct of the appellant. Appellant used to take drinks and created nuisance after consuming alcohol. His mother and grand-father had reported the matter to the local Panchayat against the appellant for creating nuisance at home. Thus, so far as the PW-7 Rajat Sharma is concerned, he has also deposed with regard to the facts narrated to him by his mother (complainant) and not by the victim herself.

24. Thus, in the present case, we are only left with the testimony of the complainant PW-2 Hem Lata, mother of the victim, who has supported the prosecution case during trial while appearing in the witness-box. As per the prosecution witnesses, appellant is a drunkard and creates nuisance at home under the influence of liquor. It has also been admitted by complainant PW-2 that the appellant indulged in domesticviolence. Since in the present case, the victim has not supported the prosecution case and the scientific evidence also does not corroborate the prosecution case, it would not be safe to base conviction of the appellant only on the basis of the testimony of PW-2 Hem Lata (complainant), as the possibility that she might have falsely involved the appellant in this case on account of domestic violence meted out to her, cannot be ruled out.
25. It is a settled proposition of law that prosecution is required to establish its case against an accused beyond the shadow of reasonable doubt. Whenever doubt arises in the prosecution case, benefit of the same has to be extended to the accused.
26. After considering the entire evidence on record, we are of the opinion that in the present case, the prosecution story is rendered doubtful. Hence, the appellant is liable to be acquitted of the charge framed against him by giving him benefit of doubt. Accordingly, the appeal is allowed. Impugned judgment and order of conviction passed by learned Additional District & Sessions Judge, Fast Track Special Court Solan, District Solan, H.P., in Sessions TrialNo.21-S/7 of 2020/2017, dated 23rd July, 2021, are set aside. Appellant is acquitted of the charge framed against him.

28. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant is directed to furnish a personal bond in the sum of Rs.25,000/- and a surety in the like amount before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.

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Judgment Ghan Shyam Versus State of Himachal Pradesh

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